HKSAR v. Lai Ying Wa

HCMA596/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 596 OF 2010

(ON APPEAL FROM KTCC 6786 OF 2009)

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BETWEEN

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Before : Hon M. Poon J in Court

Date of Hearing : 27 September 2011

Date of Judgment : 27 September 2011

Date of Reasons for Judgment : 25 November 2011

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J U D G M E N T

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1.The appellant was convicted after trial of one charge alleging that without lawful authority or excuse he had in his custody or under his control false instruments, namely six banking documents purporting to be issued by HSBC, knowing or believing them to be false, contrary to section 75(2) of the Crimes Ordinance, Chapter 200. His appeal against conviction was dismissed on 27 September, 2011 and the following are the reasons.

2.The prosecution evidence could be summarized as follows. 

3.The appellant’s home was searched by the police and documents bearing the names of several companies were seized from a cabinet in the living room: including “Crown Asia Global”; of which the appellant and Chan Chun Wah were the first shareholders; the appellant’s wife was the sole proprietor of Vinandjack.  The prosecution case in summary is that the defendant was actively involved in the operation of Crown Asia Global, which name appears on three of the six false banking documents.  All the false documents being found in the defendant’s home are kept together with other personal documents belonging to the defendant.  The prosecution submit the only inference to draw is that the defendant had custody and control of the false documents, knowing or believing them to be false. 

4.The defendant gave evidence claiming himself to be just a nominal director of Crown Asia Global, the operation of the company being the responsibility of Chan Chun Wah.  He removed all the documents from the office of Crown Asia Global at the request of Chan because Chan told him that the bailiff was about to enter the premises and the documents needed to be kept for at least seven years.  The defendant then placed the documents in his home.  He had no knowledge of either their nature or falsity. 

Grounds of appeal

5.The home-made grounds can be summarized as follows:

(1) The trial conducted in English was against his wish and his rights;

(2) the magistrate was influenced by the amount involved which was prejudicial to him;

(3) the magistrate erred in taking into consideration that he was a police officer and drew an adverse inference against him;

(4) the magistrate erred in setting too high a standard of proof against him.  

Respondent’s reply

6.The respondent submitted that the magistrate was correct in finding that the prosecution must prove (i) that the defendant had in his custody or under his control the six banking documents subject of the charge; (ii) that the documents were false and (iii) that the defendant knew or believed them to be false.  Then, it was submitted, it falls upon the appellant to make out the defence of lawful authority or excuse on the balance of probabilities.  No matter whether the appellant had a persuasive or evidential burden, it was clear from the magistrate’s findings that the appellant failed to make out the defence of lawful authority or excuse.  

My judgment

7.The first two grounds can be disposed of shortly.  

8.The short answer to the first ground of appeal can be found in my ruling which refused the appellant’s application for all the appeal documents to be translated into Chinese dated 7 October, 2010:

“In Re Cheng Kai Nam, [2002] 2 HKLRD 39, it was held that:

‘the right to use Chinese language in a court of law in Hong Kong under art-9 of the Basic Law, meant no more than the right of a person to employ that language, ie. To utilize it for the purpose of forwarding or protecting his interest. This did not imply a reciprocal obligation on the part of the court to speak and read that language. It was sufficient if processes such as the employment of translators existed.’

The court is not in any position to doubt the accuracy of the interpreter.”

9.As to ground 2, there is nothing in the transcript and Reasons for Verdict suggesting that the magistrate had prejudged the matter by the sheer amount involved. 

10.I now proceed to deal with ground 3 and 4 together.  

11.Whilst the magistrate had fully analysized the evidence and rejected the appellant’s evidence, he had reminded himself, correctly, that the burden of proof was on the prosecution.  On that basis he draw the inference that the appellant was in custody and control of the false documents knowing or believing them to be false.  The magistrate came to the conclusion that having rejected the evidence of the appellant he found the appellant had failed to prove lawful authority or excuse.  

12.The magistrate then went on to say that:

“39. If I am wrong andthe burden is on the prosecution or if the burden on the defendant is the evidential burden the same reasoning applies that the law requiring the keeping of documents does not permit a person to keep documents he knows or believes to be false. On the evidence the only inference to draw is that the defendant did not have lawful authority or excuse to possess the false banking documents.

40. In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Chan, in particular that there are no photographs showing the condition of the cabinet or living room; the defendant was cooperative during the search of his home and told the police that when Crown Asia Global stopped operating some of the documents which used to belong to Crown Asia Global were moved to his home; that the full boxes of name cards (exhibits P23 and P24) support the defendant was not actively involved in the business and that PW1 said from his investigation he knew the defendant was not the operator of the business but the financial director (the designation on the name cards). Nothing said by Mr Chan causes me to doubt the findings I have made.

41.   I have taken into account that on 11 May 2007 when the false documents were found in the defendant’s home the defendant was a serving police officer, a person tasked to uphold the law, not break the law and that the false documents were dated much earlier in time, namely September 2003, March 2004, May 2005, June 2005 and November 2005. These matters do not cause me to doubt the findings I have made.”

13.In my view, the magistrate had dealt with all aspect of the law.  The appellant’s submission that the magistrate placed too high a burden on him to discharge was misconceived.  The magistrate never relied on the fact that he was a serving police officer to draw adverse inference against him.  What he was saying in paragraph 41 of his Reasons for Verdict should not be taken out of context: he was simply saying that the fact that the appellant was a serving police officer at the material time was not a matter which would cause him to sway his decision one way or another.  

14.The appeal against conviction is devoid of any merits. 

Miss Winnie Lam, SPP of the Department of Justice, for HKSAR

The Appellant in person, present